SHIRE plc AND JPMORGAN CHASE BANK, N.A. As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of November , 2005
SHIRE
plc
AND
JPMORGAN
CHASE BANK, N.A.
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of November , 2005
TABLE
OF CONTENTS
|
Page
|
||||
| PARTIES | 1 | |||
| RECITALS | 1 | |||
| 1 | ||||
| Section 1. | Certain Definitions | |||
|
(a)
|
ADR Register | 1 | ||
|
(b)
|
ADRs | 1 | ||
|
(c)
|
|
ADS | 1 | |
|
(d)
|
Custodian | 1 | ||
|
(e)
|
Delivery Order | 1 | ||
|
(f)
|
Deposited Securities | 1 | ||
|
(g)
|
Holder | 2 | ||
|
(h)
|
Securities Act of 1933 | 2 | ||
|
(i)
|
Securities Exchange Act of 19342 | 2 | ||
|
(j)
|
Shares2 | 2 | ||
|
(k)
|
|
Transfer Office | 2 | |
|
(l)
|
Withdrawal Order | 2 | ||
| Section 2. | ADR Certificates | 2 | ||
| Section 3. | Deposit of Shares | 2 | ||
| Section 4. | Issue of ADRs | 3 | ||
| Section 5. | Distributions on Deposited Securities | 3 | ||
| Section 6. | Withdrawal of Deposited Securities | 3 | ||
| Section 7. | Substitution of ADRs | 3 | ||
| Section 8. | Cancellation and Destruction of ADRs | 4 | ||
| Section 9. | The Custodian | 4 | ||
| Section 10. | Co-Registrars and Co-Transfer Agents | 4 | ||
| Section 11. | Lists of Holders. | 4 | ||
| Section 12. | Depositary's Agents | 4 | ||
| Section 13. | Successor Depositary | 4 | ||
| Section 14. | Reports | 5 | ||
| Section 15. | Additional Shares | 6 | ||
| Section 16. | Indemnification | 6 | ||
| Section 17. | Notices | 7 | ||
| Section 18 | Miscellaneous | 7 | ||
| TESTIMONIUM | 8 | |||
| SIGNATURES | 8 | |||
EXHIBIT
A
| Page | ||||
| FORM OF FACE OF ADR | A-1 | |||
| Introductory Paragraph | A-1 | |||
| (1) | Issuance of ADRs | A-2 | ||
| (2) | Withdrawal of Deposited Securities | A-2 | ||
| (3) | Transfers of ADRs | A-3 | ||
| (4) | Certain Limitations | A-3 | ||
| (5) | Taxes | A-3 | ||
| (6) | Disclosure of Interests | A-4 | ||
| (7) | Charges of Depositary | A-5 | ||
| (8) | Available Information | A-5 | ||
| (9) | Execution | A-5 | ||
| Signature of Depositary | A-5 | |||
| Address of Depositary's Office | A-5 | |||
| FORM OF REVERSE OF ADR | A-6 | |||
| (10) | Distributions on Deposited Securities | A-6 | ||
| (11) | Record Dates | A-7 | ||
| (12) | Voting of Deposited Securities | A-7 | ||
| (13) | Changes Affecting Deposited Securities | A-8 | ||
| (14) | Exoneration | A-9 | ||
| (15) | Resignation and Removal of Depositary; the Custodian | A-9 | ||
| (16) | Amendment | A-9 | ||
| (17) | Termination | A-10 | ||
DEPOSIT
AGREEMENT dated as of November , 2005 (the "Deposit Agreement") among
SHIRE plc and its successors (the "Company"), JPMORGAN CHASE BANK, N.A., as
depositary
hereunder (the "Depositary"), and all holders from time to time of American
Depositary
Receipts issued hereunder ("ADRs") evidencing American Depositary Shares
("ADSs")
representing deposited Shares (defined below).
W
I T N E
S S E T H
WHEREAS,
Shire Pharmaceuticals Group plc ("Shire plc")has undergone a Scheme of
Arrangement
pursuant to which a new listed holding company of the Shire plc and its
subsidiary undertakings,
was put in place through a Court approved scheme of arrangement under section
425
of
the Companies ▇▇▇ ▇▇▇▇ (as amended);
WHEREAS,
Shire plc and the Depositary had entered into a deposit agreement dated as
of
March
28,
1998, as amended (the "Old Deposit Agreement") to provide for the deposit of
ordinary shares
of
Shire plc and for the creation of American depositary shares representing such
ordinary shares;
WHEREAS,
the Company and the Depositary desire that the terms of the ADRs issued
hereunder
initially be identical in all respects to those American depositary receipts
issued under the
Old
Deposit Agreement until such time as this Deposit Agreement shall be amended
and
restated;
NOW
THEREFORE, in consideration of the premises, the parties hereto agree as
follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
certificates evidencing ADSs substantially in the form of Exhibit A
annexed
hereto (the "form
of ADR").
The
form of ADR is hereby incorporated herein and made
a
part hereof; the provisions of the form of ADR shall be binding upon the parties
hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents
the right to receive three (3) Shares and a pro rata share in any other
Deposited Securities.
(d) "Custodian"
means
the agent or agents of the Depositary (singly or collectively, as
the
context requires) named as Custodian in the form of ADR and any additional
or
substitute Custodian
appointed pursuant to Section 9.
(e) "Delivery
Order"
is
defined in Section 3.
(f) "Deposited
Securities"
as of
any time means all Shares at such time deposited under
this Deposit Agreement and any and all other Shares, securities, property and
cash at such time held by the Depositary or the Custodian in respect or in
lieu
of such deposited Shares and other
Shares, securities, property and cash.
1
(g) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(h) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(i) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(j) "Shares"
mean
the Ordinary Shares of the Company and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(k) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(l) "Withdrawal
Order"
is
defined in Section 6.
2.
ADR
Certificates.
ADRs
shall be engraved, printed or otherwise reproduced at the discretion
of the Depositary in accordance with its customary practices in its American
depositary receipt
business, or at the request of the Company typewritten and photocopied on plain
or safety paper,
and shall be substantially in the form set forth in the form of ADR, with such
changes as may
be
required by the Depositary or the Company to comply with their obligations
hereunder, any
applicable law, regulation, usage or the requirements of any securities exchange
or market upon
which the ADSs primarily may be listed or traded or to indicate any special
limitations or restrictions
to which any particular ADRs are subject. ADRs may be issued in denominations
of
any
number of ADSs. ADRs shall be executed by the Depositary by the manual or
facsimile signature
of a duly authorized officer of the Depositary. ADRs bearing the facsimile
signature of anyone
who was at the time of execution a duly authorized officer of the Depositary
shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of
such
ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons designated
in such order an ADR or ADRs evidencing the number of ADSs representing such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed and
stamped instruments
of transfer in respect of such deposited Shares; (c) instruments assigning
to
the Custodian
or its nominee any distribution on or in respect of such deposited Shares or
indemnity therefor;
and, (d) proxies entitling the Custodian to vote such deposited Shares. As
soon
as practicable
after the Custodian receives Deposited Securities pursuant to any such deposit
or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall present such
Deposited Securities for registration of transfer into the name of the
Depositary or its nominee or the
Custodian or its nominee, to the extent such registration is practicable, at
the
cost and expense of
the
person making such deposit (or for whose benefit such deposit is made) and
shall
obtain evidence
satisfactory to it of such registration. Deposited Securities shall be held
by
the Custodian
for the account and to the order of the Depositary at such place or places
and
in such manner
as
the Depositary shall determine. Deposited Securities may be delivered by the
Custodian
to any person only under the circumstances expressly contemplated in the Deposit
Agreement.
2
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery Order
by letter,
first class airmail postage prepaid, or, at the request, risk and expense of
the
person making the
deposit, by cable, telex or facsimile transmission. After receiving such notice
from the Custodian,
the Depositary, subject to the Deposit Agreement, shall execute and deliver
at
the Transfer
Office, to or upon the order of any person named in such notice, an ADR or
ADRs
registered
as requested and evidencing the aggregate ADSs to which such person is
entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
discretion that any distribution pursuant to paragraph (10) of the form of
ADR
is not practicable
with respect to any Holder, the Depositary may make such distribution as it
so
deems practicable,
including the distribution of foreign currency, securities or property (or
appropriate documents
evidencing the right to receive foreign currency, securities or property) or
the
retention thereof
as Deposited Securities with respect to such Holder's ADRs (without liability
for interest thereon
or the investment thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby, the
Depositary
may require proper endorsement in blank of such ADR (or duly executed
instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered
to, or upon the written order of, any person designated in such order (a
"Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder,
by cable, telex or facsimile transmission. Delivery of Deposited Securities
may
be made by
the
delivery of certificates (which, if required by law shall be properly endorsed
or accompanied
by properly executed instruments of transfer or, if such certificates may be
registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order)
or
by such other means as the Depositary may deem practicable.
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new ADR of like tenor
in
exchange and substitution for any mutilated ADR upon cancellation thereof or
in
lieu of and
in
substitution for such destroyed, lost or stolen ADR, unless the Depositary
has
notice that such
ADR
has been acquired by a bona fide purchaser, upon the Holder thereof filing
with
the Depositary
a request for such execution and delivery and a sufficient indemnity bond and
satisfying any other reasonable requirements imposed by the
Depositary.
3
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be
canceled by the Depositary. The Depositary is authorized to destroy ADRs so
canceled in accordance
with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from time
to time, after consultation
with the Company if practicable, appoint one or more agents to act for it as
Custodian
hereunder in addition to or in lieu of the Custodian appointed hereunder. Each
Custodian
so appointed (other than JPMorgan Chase Bank, N.A.) shall give written notice
to
the Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms hereof. Any Custodian may resign from its duties hereunder by at least
30
days written
notice to the Depositary. The Depositary may discharge any Custodian at any
time
upon notice
to
the Custodian being discharged. Courtesy copies of any such notice shall be
provided to the
Company. Any Custodian ceasing to act hereunder as Custodian shall deliver,
upon
the instruction
of the Depositary, all Deposited Securities held by it to a Custodian so
continuing to act.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars
to register ADRs and transfers, combinations and split-ups of ADRs and to
countersign
ADRs in accordance with the terms of any such appointment and (ii) co-transfer
agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer
offices in addition to the Transfer Office on behalf of the Depositary. Each
co-registrar or co-transfer
agent (other than JPMorgan Chase Bank, N.A.) shall give notice in writing to
the
Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms of the Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and
its
agents to supply copies of such portions of such records as the Company may
request. The Depositary
or its agent shall furnish to the Company promptly upon the written request
of
the Company,
a list of the names, addresses and holdings of ADSs by all Holders as of a
date
within seven
days of the Depositary's receipt of such request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under the Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company
of such appointment and shall remain responsible for the performance of such
obligations
as if no agent were appointed.
13.
Successor
Depositary.
If the
Depositary acting hereunder shall resign or be removed, the
Company shall, unless it elects to terminate this Agreement in accordance with
paragraph (17) of
the
form of ADR, use its best efforts to appoint a bank or trust company having
an
office in the Borough
of Manhattan, The City of New York, as successor depositary hereunder. Every
successor depositary shall execute and deliver to its predecessor and to the
Company written acceptance
of its appointment hereunder, and thereupon
4
such
successor depositary, without any further
act or deed, shall become Depositary hereunder; but such predecessor, upon
payment of all sums
due
it and on the written request of the Company, shall execute and deliver an
instrument transferring
to such successor all rights and powers of such predecessor hereunder and
assigning all
interest in the Deposited Securities to such successor, and shall deliver to
such successor a copy
of
its records in respect of all outstanding ADRs issued hereunder and a list
of
the Holders. Any
bank
or trust company into or with which the Depositary may be merged or consolidated
shall
be
the successor of the Depositary without the execution or filing of any document
or any further
act. Upon the appointment of any successor depositary hereunder, any agent
of
the Depositary
then acting hereunder shall forthwith become such agent hereunder of such
successor depositary
and such successor depositary shall, on the written request of any such agent,
execute and
deliver to such agent any instruments necessary to give such agent authority
as
such agent hereunder
of such successor depositary. Notwithstanding the foregoing, any appointment
of
a successor
Depositary shall not relieve the predecessor Depositary or the Company from
those obligations
and liabilities to each other under Section 16 hereof which arose prior to
the
appointment
of such successor Depositary. A predecessor Depositary shall not have any
liability or
incur
any expense as a result of any action or inaction on the part of a successor
Depositary.
14.
Reports.
The
Depositary shall make available for inspection by Holders at the Transfer
Office any reports and communications received by the Company which are both
(a)
received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available
to the holders of such Deposited Securities by the Company. The Depositary
shall
also promptly
send to the Holders copies of such reports when furnished by the Company. Any
such reports
and communications furnished to the Depositary by the Company shall be furnished
in English.
On or before the first date on which the Company gives notice, by publication
or
otherwise,
of any meeting of holders of Shares or other Deposited Securities, or of any
adjourned meeting
of such holders, or the taking of any action by such holders other than at
a
meeting, the Company
shall transmit to the Custodian and the Depositary a copy thereof in English
in
the form given
or
to be given, or made publicly available, to holders of Shares or other Deposited
Securities.
At the written request of the Company and upon receipt of a sufficient number
of
copies
of
such notices from the Company, the Depositary will arrange for the prompt
mailing of copies
of
such notices to all Holders. In connection with any registration statement
under
the Securities
Act of 1933 relating to the ADRs or with any undertaking contained therein,
the
Company
and the Depositary shall each furnish to the other and to the United States
Securities and
Exchange Commission or any successor governmental agency such information as
shall be required
to make such filings or comply with such undertakings. The Company has delivered
to the
Depositary, the Custodian and any Transfer Office, a copy of all provisions
of
or governing the Shares
and any other Deposited Securities issued by the Company or any affiliate of
the
Company and,
promptly upon any change thereto, the Company shall deliver to the Depositary,
the Custodian
and any Transfer Office, a copy (in English or with an English translation)
of
such provisions
as so changed. The Depositary and its agents may rely upon the Company's
delivery thereof
for all purposes of the Deposit Agreement.
5
15.
Additional
Shares.
Neither
the Company nor any company controlled by the Company
shall issue additional Shares, rights to subscribe for Shares, securities
convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares
under this Deposit Agreement, except under circumstances complying in all
respects with, and
not
in violation of, the Securities Act of 1933. The Company shall use its best
efforts to ensure
that any company controlling or under common control with the Company shall
abide by the
restrictions set forth in the preceding sentence. The Depositary will use
reasonable efforts to comply
with written instructions of the Company not to accept for deposit hereunder
any
Shares identified
in such instructions at such times and under such circumstances as may
reasonably be specified
in such instructions in order to facilitate the Company's compliance with
securities laws in
the
United States.
16.
Indemnification.
(a) The
Company shall indemnify, defend and save harmless each of
the
Depositary and its agents against any loss, liability or expense (including
reasonable fees and
expenses of counsel) that may arise out of (a) its acceptance and performance
of
its powers and
duties in respect of the Deposit Agreement, except to the extent such loss,
liability or expense is
due to
the negligence or bad faith of the Depositary or its agents, as the case may
be,
or (b) any offer
or
sale of ADRs, ADSs, Shares or other Deposited Securities or any registration
statement under
the
Securities Act of 1933 in respect thereof filed by the Company (including any
Form F-6 registration
statement to which this Deposit Agreement has been, and may hereafter be, filed
or incorporated
by reference therein as an exhibit), except to the extent such loss, liability
or expense arises
out of information (or omissions from such information) relating to it furnished
in writing to
the
Company by it expressly for use in any such registration statement. Each of
the
Depositary and
its
agents shall indemnify, defend and save harmless the Company against any loss,
liability or
expense incurred by the Company in respect of the Deposit Agreement to the
extent such loss, liability
or expense is due to the negligence or bad faith of such person. The obligations
set forth in
this
Section 16 shall survive the termination of the Deposit Agreement and the
succession or substitution
of any indemnified person.
(b)
Any
person seeking indemnification hereunder (an "indemnified
person")
shall
notify the
person from whom it is seeking indemnification (the "indemnifying
person")
of the
commencement
of any indemnifiable action or claim promptly after such indemnified person
becomes
aware of such commencement (provided that the failure to make such notification
shall not
affect such indemnified person's rights otherwise than under this Section 16
and
shall only affect
its rights hereunder to the extent such failure is prejudicial) and shall
consult in good faith with
the
indemnifying person as to the conduct of the defense of such action or claim,
which shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any indemnifiable
action or claim without the prior written consent of the indemnifying person
(which consent
shall not be unreasonably withheld or delayed).
(c) The
obligations set forth in this Section 16 shall survive the termination of the
Deposit
Agreement and the succession or substitution of any indemnified
person.
6
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received by
it at
the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
|
(a)
|
JPMorgan Chase Bank, N.A. | |
| Four ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||
| Attention: ADR Administration | ||
| Fax: (▇▇▇) ▇▇▇-▇▇▇▇ | ||
|
(b)
|
Shire plc | |
| Hampshire International Business Park | ||
| ▇▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ | ||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Attention: Group Finance Director | ||
| Fax: ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ |
18.
Miscellaneous.
The
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners of ADRs
from
time to time shall be parties to the Deposit Agreement and shall be bound by
all
of the provisions
hereof. If any such provision is invalid, illegal or unenforceable in any
respect, the remaining
provisions shall in no way be affected thereby. The Deposit Agreement may be
executed
in any number of counterparts, each of which shall be deemed an original and
all
of which
shall constitute one instrument.
7
IN
WITNESS WHEREOF, SHIRE plc and JPMORGAN CHASE BANK, N.A. have
duly
executed this Deposit Agreement as of the day and year first above set forth
and
all holders
of ADRs shall become parties hereto upon acceptance by them of ADRs issued
in
accordance
with the terms hereof.
| SHIRE plc | |||
|
|
By | ||
| Name: | |||
| Title: | |||
| JPMORGAN CHASE BANK, N.A. | |||
| By | |||
| Name: | |||
| Title: Vice President | |||
8
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
THE
RIGHT OF HOLDERS HEREOF TO DIRECT THE VOTING OF SHARES MAY BE
RESTRICTED AS DESCRIBED IN PARAGRAPHS (6) AND (12)
BELOW.
| No. of ADSs: |
_
Number
| ________ | |||
| Each ADS represents | |||
| Three (3) Shares | |||
| CUSIP: |
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES, NOMINAL VALUE 5P EACH
of
SHIRE
plc
(Incorporated
under the
laws
of
England and Wales)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the
laws
of
the United States, as depositary hereunder (the "Depositary"), hereby certifies
that is
the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph
(13)) representing three ordinary shares (including the rights to receive Shares
described
in paragraph (1), "Shares" and, together with any other securities, cash or
property from time
to
time held by the Depositary in respect or in lieu of deposited Shares, the
"Deposited Securities"),
of Shire plc, a corporation organized under the laws of England and Wales (the
"Company"),
deposited with the Custodian appointed under the Deposit Agreement (subject
to
paragraph
(15), the "Custodian"), under the Deposit Agreement dated as of November ,
2005
(as amended
from time to time, the "Deposit Agreement") among the Company, the Depositary
and all
Holders from time to time of American Depositary Receipts issued thereunder
("ADRs"), each of
whom
by accepting an ADR becomes a party thereto. The Deposit Agreement and this
ADR
(which includes the provisions set forth on the reverse hereof) shall be
governed by and construed in
accordance with the laws of the State of New York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at
the
Transfer
Office (defined in paragraph (3)) only against deposit with the Custodian of:
(a) Shares in
form
satisfactory to the Custodian; (b) rights to receive Shares from the Company
or
any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or,
(c)
unless requested in writing by the Company to cease doing so at least two
business days in advance
of the proposed deposit, other rights to receive Shares (until such Shares
are
actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released
ADRs
are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary
for the benefit of Holders (but such collateral shall not constitute "Deposited
Securities"),
(ii) each recipient of Pre-released ADRs agrees in writing with the Depositary
that such
recipient (a) owns such Shares, (b) assigns all beneficial right, title and
interest therein to the Depositary
in its capacity as such, (c) holds such Shares for the account of the
Depositary, (d) will deliver
such Shares to the Custodian as soon as practicable and promptly upon demand
therefor and
(e)
will not take any action with respect to the Pre-released ADS and Shares that
is
inconsistent
with the transfer of the Depositary's beneficial ownership thereof, and (iii)
all Pre-released
ADRs evidence not more than 20% of all ADSs (excluding those evidenced by
Pre-released
ADRs), except to the extent that the Depositary (in its sole discretion)
determines that
unusual market conditions require the issuance of Pre-released ADRs in addition
to 20% of all
such
ADSs. The Depositary may retain for its own account any earnings on collateral
for Pre-released
ADRs and its charges for issuance thereof. At the request, risk and expense
of
the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may
deliver ADRs at a place other than its office. Every person depositing Shares
under the Deposit
Agreement represents and warrants that such Shares are free and clear of any
lien, encumbrance,
security interest, charge, mortgage, pledge or restriction on transfer, validly
issued and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that
the
person making such
deposit is duly authorized so to do and that such Shares (A) are not "restricted
securities" as such
term
is defined in Rule 144 under the Securities Act of 1933 unless at the time
of
deposit they
may
be freely transferred in accordance with Rule 144(k) and may otherwise be
offered and sold
freely in the United States or (B) have been registered under the Securities
Act
of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary
will not knowingly accept for deposit under the Deposit Agreement any Shares
required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may
refuse to accept for such deposit any Shares identified by the Company in order
to facilitate the
Company's compliance with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of
this
ADR in form satisfactory to the Depositary at the Transfer Office, the Holder
hereof is entitled
to delivery at the Custodian's office of the Deposited Securities at the time
represented by the
ADSs
evidenced by this ADR. At the request, risk and expense of the Holder hereof,
the Depositary
may deliver such Deposited Securities at such other place as may have been
requested by
the
Holder. Notwithstanding any other provision of the Deposit Agreement or this
ADR, the withdrawal
of Deposited Securities may be restricted only for the reasons set forth in
General Instruction
I.A.(1) of Form F-6 (as such instructions may be amended from time to time)
under the Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
in
the Borough of Manhattan, The City of New York (the "Transfer Office"), (a)
a
register (the
"ADR
Register") for the registration, registration of transfer, combination and
split-up of ADRs,
which at all reasonable times will be open for inspection by Holders and the
Company for the
purpose of communicating with Holders in the interest of the business of the
Company or a matter
relating to the Deposit Agreement and (b) facilities for the delivery and
receipt of ADRs. Title
to
this ADR (and to the Deposited Securities represented by the ADSs evidenced
hereby), when
properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery
with the same effect as in the case of negotiable instruments under the laws
of
the State of
New
York; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the
person in whose name this ADR is registered on the ADR Register as the absolute
owner hereof
for all purposes. Subject to paragraphs (4) and (5), this ADR is transferable
on
the ADR Register
and may be split into other ADRs or combined with other ADRs into one ADR,
evidencing
the same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized
attorney upon surrender of this ADR at the Transfer Office properly endorsed
or
accompanied
by proper instruments of transfer and duly stamped as may be required by
applicable law;
provided
that the
Depositary may close the ADR Register at any time or from time to time
when
deemed expedient by it or requested by the Company.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of any ADR, the delivery of any distribution in respect thereof, or, subject
to
the last sentence
of paragraph (2), the withdrawal of any Deposited Securities, and from time
to
time in the
case
of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require:
(a) payment with respect thereto of (i) any stamp duty, stamp duty reserve
tax
or other transfer
duty or stock transfer or other tax or other governmental charge, (ii) any
stock
transfer or registration
fees in effect for the registration of transfers of Shares or other Deposited
Securities upon
any
applicable register and (iii) any applicable charges as provided in paragraph
(7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity and genuineness
of any signature
and (ii) such other information, including without limitation, information
as to
citizenship,
residence, exchange control approval, beneficial ownership of any securities,
compliance
with applicable law, regulations, provisions of or governing Deposited
Securities and terms
of
the Deposit Agreement and this ADR, as it may deem necessary or proper; and
(c)
compliance
with such regulations as the Depositary may establish consistent with the
Deposit Agreement.
The issuance of ADRs, the acceptance of deposits of Shares, the registration,
registration
of transfer, split-up or combination of ADRs or, subject to the last sentence
of
paragraph
(2), the withdrawal of Deposited Securities may be suspended, generally or
in
particular instances,
when the ADR Register or any register for Deposited Securities is closed or
when
any such
action is deemed advisable by the Depositary or the Company.
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf
of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by
the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall
be
paid by the Holder hereof to the Depositary and neither the Company nor the
Depositary shall
have any liability therefore. The Depositary may refuse to effect any
registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may
also
deduct from any distributions on or in respect of Deposited Securities, or
may
sell by public
or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities
(after attempting by reasonable means to
A-3
notify
the Holder hereof prior to such sale), and
may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental
charge, the Holder hereof remaining liable for any deficiency, and shall reduce
the number
of
ADSs evidenced hereby to reflect any such sales of Deposited Securities. In
connection
with any distribution to Holders, the Company will remit to the appropriate
governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority
or agency by the Company; and the Depositary and the Custodian will remit to
the
appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing
to
such authority or agency by the Depositary or the Custodian. If the Depositary
determines
that any distribution in property other than cash (including Shares or rights)
on Deposited
Securities is subject to any tax that the Depositary or the Custodian is
obligated to withhold,
the Depositary may dispose of all or a portion of such property in such amounts
and in such
manner as the Depositary deems necessary and practicable to pay such taxes,
by
public or private
sale, and the Depositary shall distribute the net proceeds of any such sale
or
the balance of any
such
property after deduction of such taxes to the Holders entitled
thereto.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing or to which such
Deposited Securities are otherwise subject may require disclosure of or impose
limits on beneficial
or other ownership of Deposited Securities, other Shares and other securities
and may provide
for blocking transfer, voting or other rights to enforce such disclosure or
limits, Holders and
all
persons holding ADRs agree to comply with all such disclosure requirements
and
ownership
limitations and to cooperate with the Depositary in the Depositary's compliance
with any
Company instructions in respect thereof, and the Depositary will use reasonable
efforts to comply
with such Company instructions.
Notwithstanding
any provision of the Deposit Agreement or of this ADR and without limiting
the foregoing, by being a Holder of an ADR, each such Holder agrees to provide
such information
as the Company may request in a disclosure notice (a "Disclosure Notice") given
pursuant
to the Great Britain Companies Act 1985 (as amended from time to time and
including any
statutory modification or re-enactment thereof, the "Companies Act") or the
Articles of Association
of the Company. By accepting or holding this ADR, each Holder acknowledges
that
it
understands that failure to comply with a Disclosure Notice may result in the
imposition of sanctions
against the holder of the Shares in respect of which the non-complying person
is
or was, or
appears to be or has been, interested as provided in the Companies Act and
the
Articles of Association
which currently include, the withdrawal of the voting rights of such Shares
and
the imposition
of restrictions on the rights to receive dividends on and to transfer such
Shares. In addition,
by accepting or holding this ADR each Holder agrees to comply with the
provisions of the
Companies Act with regard to the notification to the Company of interests in
Shares, which currently
provide, inter alia,
that
any Holder who is or becomes directly or indirectly interested (within
the meaning of the Companies Act) in 3% or more of the outstanding Shares,
or is
aware that
another person for whom it holds such ADRs is so interested, must within two
business days after
becoming so interested or so aware (and thereafter in certain circumstances
upon
any change to
the
particulars previously notified) notify the Company as required by the Companies
Act. After
the
relevant threshold is exceeded, similar notifications must be made in whole
respect of whole percentage figure increases or decreases, rounded down to
the
nearest whole number.
A-4
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADRs are issued
against deposits of Shares, including deposits in respect of Share
Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADRs
for
withdrawal of Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion
thereof) evidenced
by the ADRs delivered or surrendered. The Depositary may sell (by public or
private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions
prior to such deposit to pay such charge. The Company will pay all other charges
and
expenses of the Depositary and any agent of the Depositary (except the
Custodian) pursuant to agreements
from time to time between the Company and the Depositary, except (i) stock
transfer or
other
taxes and other governmental charges (which are payable by Holders or persons
depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request
of persons depositing, or Holders delivering Shares, ADRs or Deposited
Securities (which are
payable by such persons or Holders), (iii) transfer or registration fees for
the
registration of transfer
of Deposited Securities on any applicable register in connection with the
deposit or withdrawal
of Deposited Securities (which are payable by persons depositing Shares or
Holders withdrawing
Deposited Securities; there are no such fees in respect of the Shares as of
the
date of the
Deposit Agreement) and (iv) expenses of the Depositary in connection with the
conversion of foreign
currency into U.S. dollars (which are paid out of such foreign currency). These
charges may
be
changed in the manner indicated in paragraph (16).
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received by
the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to
the
holders of Deposited Securities, are available for inspection by Holders at
the
offices of the Depositary
and the Custodian and at the Transfer Office. The Depositary will mail copies
of
such communications
(or English translations or summaries thereof) to Holders if and when furnished
by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange
Act of 1934 and accordingly files certain reports with the United States
Securities and Exchange
Commission (the "Commission"). Such reports and other information may be
inspected
and copied at public reference facilities maintained by the Commission located
at the date
hereof at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
|
By
|
||
|
Authorized
Officer
|
The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-5
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute by mail to each Holder entitled
thereto on the record
date set by the Depositary therefor at such Holder's address shown on the ADR
Register, in proportion
to the number of Deposited Securities (on which the following distributions
on
Deposited
Securities are received by the Custodian) represented by ADSs evidenced by
such
Holder's
ADRs and, in each case, without unreasonable delay:
(a)
Cash:
Any
U.S. dollars available to the Depositary resulting from a cash dividend
or other cash distribution or the net proceeds of sales of any other
distribution or portion thereof
authorized in this paragraph (10) ("Cash"), on an averaged or other practicable
basis, subject
to (i) appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible
or impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's
expenses in (1) converting any foreign currency to U.S. dollars by sale or
in
such other
manner as the Depositary may determine to the extent that it determines that
such conversion
may be made on a reasonable basis, (2) transferring foreign currency or U.S.
dollars to the
United States by such means as the Depositary may determine to the extent that
it determines that
such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental
authority required for such conversion or transfer, which is obtainable at
a
reasonable
cost and within a reasonable time and (4) making any sale by public or private
means in
any
commercially reasonable manner. If the Depositary determines in its reasonable
judgment that
such
foreign currency is not convertible, in whole or in part, on a reasonable basis
into U.S. dollars
transferable to the United States, or if any approval or license which is
required for such conversion
is denied or in the opinion of the Depositary, is not obtainable or is not
obtained within
a
reasonable period or at a reasonable cost, the Depositary may distribute all
or
part of the foreign
currency (or an appropriate document evidencing the right to receive such
foreign currency)
to, or in its discretion may hold such foreign currency uninvested and without
liability for
interest thereon for the respective accounts of, the Holders entitled thereto.
All expenses of any
such
conversion shall be deducted from the proceeds thereof.
On
the
date in which the Company shall pay any cash dividend to its holders of
Shares
or
other Deposited Securities, the Company may convert or cause to be converted,
in
a commercially
reasonable manner, such foreign currency into U.S. dollars and distribute the
same to
the
Depositary for distribution to Holders. No deductions shall be made by the
Company from the
proceeds of such conversion; provided that actual and customary commissions
paid
by the Company
on account of such conversion shall not be considered a deduction by the
Company. If such
conversion or distribution generally or with regard to any particular Holder
can
be effected only
with
the approval or license of any government or agency thereof, the Company shall
have discretion
and authority to file such application for approval or license, if any, as
it
may deem desirable.
(b)
Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available
to the Depositary resulting from a dividend or free distribution on Deposited
Securities consisting
of Shares (a "Share Distribution") and (ii) U.S. dollars available to it
resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares
would
give rise to fractional
ADSs if additional ADRs were issued therefor, as in the case of
Cash.
A-6
(c)
Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares
or
rights of any nature available to the Depositary as a result of a distribution
on Deposited Securities
("Rights"), to the extent that the Company timely furnishes to the Depositary
evidence satisfactory
to the Depositary that the Depositary may lawfully distribute the same (the
Company has
no
obligation to so furnish such evidence), or (ii) to the extent the Company
does
not so furnish
such evidence and sales of Rights are practicable, any U.S. dollars available
to
the Depositary
from the net proceeds of sales of Rights as in the case of Cash, or (iii) to
the
extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason
of
the nontransferability of the Rights, whether by their terms, pursuant to
applicable law or
otherwise, limited markets therefor, their short duration or otherwise, nothing
(and any Rights may
lapse).
(d)
Other
Distributions.
(i)
Securities or property available to the Depositary resulting
from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights
("Other Distributions"), by any means that the Depositary may deem equitable
and
practicable,
or (ii) to the extent the Depositary deems distribution of such securities
or
property not
to be
equitable and practicable, any U.S. dollars available to the Depositary from
the
net proceeds
of sales of Other Distributions as in the case of Cash. Before effecting any
such sale of a Share
Distribution, Rights or Other Distribution, the Depositary will provide notice
to the Company
of its intended action. Such U.S. dollars available will be distributed by
checks drawn on
a bank
in the United States for whole dollars and cents (any fractional cents being
withheld without
liability for interest and dealt with by the Depositary in accordance with
its
then current practices).
(11)
Record
Dates.
The
Depositary may, after consultation with the Company, if practicable,
fix a record date (which shall be as near as practicable to any corresponding
record date
set
by the Company) for the determination of the Holders who shall be entitled
to
receive any distribution
on or in respect of Deposited Securities, to give instructions for the exercise
of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be
so
entitled.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders
of
Shares or other
Deposited Securities, the Depositary shall fix a record date in accordance
with
paragraph (11)
hereof and, unless otherwise requested in writing by the Company in order to
comply with applicable
law, mail to Holders a notice stating (a) such information as is contained
in
such notice and
any
solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor
will be entitled to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining
to the Deposited Securities represented by the ADSs evidenced by such Holder's
ADRs and
(c)
the manner in which such instructions may be given, including instructions
to
give a discretionary
proxy to a person designated by the Company subject to any applicable provisions
of the
laws
of the United Kingdom and the Memorandum and Articles of Association of the
Company
and the provisions of or governing Deposited Securities. Upon receipt of
instructions of
a
Holder on such record date in the manner and on or before the date established
by the Depositary
for such purpose, the Depositary shall endeavor insofar as practicable and
permitted under
the
provisions of or governing Deposited Securities to vote or cause to be voted
(or
to grant a discretionary
A-7
proxy
to
a person designated by the Company to vote) the Deposited Securities
represented
by the ADSs evidenced by such Holder's ADRs in accordance with such
instructions. The
Depositary will not itself exercise any voting discretion in respect of any
Deposited Security. Subject
to the provisions of the next succeeding paragraph, to the extent such
instructions are not so
received by the Depositary from any Holder, the Holder shall be deemed to have
instructed the Depositary
to give a discretionary proxy to a person designated by the Company to vote
the
Deposited
Securities represented by ADSs as to which the Depositary has not received
instructions
from the Holders, provided
that no
such instruction shall be deemed to be given and no
discretionary proxy shall be given with respect to which the Company informs
the
Depositary (and
the
Company agrees to provide such information promptly in writing) that the Company
does not
wish
such proxy given.
Notwithstanding
anything to the contrary contained in the preceding paragraph, the Depositary
shall not be obligated to give any such discretionary proxy and the Holders
shall not have
been
deemed to have so instructed the Depositary unless and until the Depositary
has
been provided
with an opinion of counsel to the Company, which may be given at the time of
entering into
the
Deposit Agreement, satisfactory to the Depositary (which may be internal
counsel), in form
and
substance satisfactory to the Depositary, substantially to the effect that
(i)
the granting of such
discretionary proxy does not subject the Depositary to any additional disclosure
obligations related
to interests in shares under the Companies Act or the listing rules of the
London Stock Exchange
except for any required notification to the Company pursuant to Part VI of
the
Companies
Act, (ii) the granting of such proxy does not result in a breach of the
Companies Act or
the
listing rules of the London Stock Exchange and (iii) the Depositary or the
Custodian, or the nominee
of any of them, whichever is the registered holder entitled to attend and vote
at meetings of
the
Company in respect of such Shares, has the right to appoint the proxy to attend
and vote instead
of him. The Company undertakes to inform the Depositary of any substantial
change in law
which
would subject the Depositary to disclosure obligations under the Companies
Act
or listing
rules of the London Stock Exchange (other than said Part VI of the Companies
Act) to which
the
Depositary, the Custodian or the nominee of any of them would not otherwise
be
subject
but for the grant of such discretionary proxy.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its discretion, and after consultation with the Company if practicable,
amend this
ADR
or distribute additional or amended ADRs (with or without calling this ADR
for
exchange)
or cash, securities or property on the record date set by the Depositary
therefor to reflect
any change in par value, split-up, consolidation, cancellation or other
reclassification of Deposited
Securities, any Share Distribution or Other Distribution not distributed to
Holders
or any cash, securities or property available to the Depositary in respect
of
Deposited Securities
from (and the Depositary is hereby authorized to surrender any Deposited
Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy
or
sale
of
all or substantially all the assets of the Company, and to the extent the
Depositary does not so
amend
this ADR or make a distribution to Holders to reflect any of the foregoing,
or
the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute
Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
A-8
(14)
Exoneration.
Without
limiting Section 16 of the Deposit Agreement as between the Company
and the Depositary, the Depositary, the Company, their respective officers,
directors, employees
and agents and each of them shall: (a) incur no liability (i) if any present
or
future law, regulation,
the provisions of or governing any Deposited Securities, act of God, war or
other circumstance
beyond its control shall prevent, delay or subject to any civil or criminal
penalty any act
which
the Deposit Agreement or this ADR provides shall be done or performed by it,
or
(ii) by reason
of
any exercise or failure to exercise any discretion given it in the Deposit
Agreement or this
ADR;
(b) assume no obligation nor shall any of them be subject to any liability
to
any Holders or
beneficial owners of ADSs or any other person except to perform its obligations
to the extent they
are
specifically set forth in this ADR and the Deposit Agreement without gross
negligence or bad
faith; (c) in the case of the Depositary and its agents, be under no obligation
to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or this
ADR;
or (d) in the case of the Company and its agents hereunder be under no
obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities
or this ADR, which in its opinion may involve it in expense or liability, unless
indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability
be furnished as often as may be required; or (e) not be liable for any action
or
inaction by it
in
reliance upon the advice of or information from legal counsel, accountants,
any
person presenting
Shares for deposit, any Holder, or any other person believed by it to be
competent to give
such
advice or information. The Depositary and the Company, their respective agents
and their
respective directors, officers and employees acting hereunder may rely and
shall
be protected in
acting
upon any written notice, request, direction or other document believed by them
to be genuine
and to have been signed or presented by the proper party or parties. The
Depositary and its
agents will not be responsible for any failure to carry out any instructions
to
vote any of the Deposited
Securities, for the manner in which any such vote is cast or for the effect
of
any such vote.
The
Depositary and its agents may own and deal in any class of securities of the
Company and
its
affiliates and in ADRs. The Company has agreed to indemnify the Depositary
and
its agents
under certain circumstances and the Depositary has agreed to indemnify the
Company under
certain circumstances. No disclaimer of liability under the Securities Act
of
1933 is intended
by any provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as
Depositary by written notice of its election to do so delivered to the Company,
or be removed as
Depositary by the Company by written notice of such removal delivered to the
Depositary; such resignation
or removal shall take effect upon the appointment of and acceptance by a
successor depositary.
The Depositary may appoint substitute or additional Custodians and the term
"Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement
may be amended by the Company and the Depositary, provided
that any
amendment that
imposes or increases any fees or charges (other than stock transfer or other
taxes and other governmental
charges, transfer or registration fees for the registration of transfer of
Deposited Securities
on any applicable register in connection with the deposit or withdrawal of
Deposited Securities,
cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or that
shall otherwise prejudice any substantial existing right of Holders, shall
become effective 30 days
after notice of such amendment shall have been given to the Holders. Every
Holder of an ADR
at
the time any amendment to the Deposit Agreement so becomes effective shall
be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Holder
of
any ADR to surrender such ADR and receive the Deposited Securities represented
thereby,
except in order to comply with mandatory provisions of applicable law. The
parties hereto
agree that
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any
amendments or supplements which (i) are reasonably necessary (as agreed
by
the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form
and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders,
shall be deemed not to prejudice any substantial rights of Holders. In no event
shall any amendment
or supplement impair the right of the Holder to surrender such ADR and receive
therefor
the Deposited Securities represented thereby except in order to comply with
mandatory provisions
of applicable law. Notwithstanding the foregoing, if any governmental body
should adopt
new
laws, rules or regulations which would require amendment or supplement of the
Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and
the
Depositary
may amend or supplement the Deposit Agreement and the ADR at any time in
accordance
with such changed rules. Such amendment or supplement to the Deposit Agreement
in such
circumstances may become effective before a notice of such amendment or
supplement is given
to
Holders or within any other period of time as required for
compliance.
(17)
Termination.
The
Depositary shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders
at least 30 days prior to the date fixed in such notice for such termination.
The Depositary
may terminate the Deposit Agreement by giving the notice set forth in the
preceding sentence
of this paragraph (17) at any time after 60 days has elapsed after the
Depositary shall have
resigned hereunder, provided that no successor depositary shall have been
appointed and accepted
its appointment hereunder before the end of such 60 days. After the date so
fixed for termination,
the Depositary and its agents will perform no further acts under the Deposit
Agreement
and this ADR, except to advise Holders of such termination, receive and hold
(or
sell) distributions
on Deposited Securities and deliver Deposited Securities being withdrawn. As
soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so)
hold
in a segregated account the net proceeds of such sales, together with any other
cash then held
by
it under the Deposit Agreement, without liability for interest, in trust for
the
pro rata benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary
shall be discharged from all obligations in respect of the Deposit Agreement
and
this ADR,
except to account for such net proceeds and other cash. After the date so fixed
for termination,
the Company shall be discharged from all obligations under the Deposit Agreement
except
for its obligations to the Depositary and its agents.
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